Y MAHABALESWARAPPA Vs. MGOPALASWAMI MUDALIAR

JUDGEMENT

(1.) This is an appeal against an order of the District Judge of Bellary refusing to prefer a criminal complaint of forgery against the respondent, Mr. M. Gopalaswami Mudaliar. Up to 10 A.M. on the 1 November, 1932, Mr. M. Gopalaswami Mudaliar was President of the District Board of Bellary. He was succeeded in that office by the petitioner before the District Judge, one Mr. Mahabaleswarappa. In an election petition which Mr. Gopalaswami Mudaliar filed in the Court of the Election Commissioner to unseat Mr. Mahabaleswarappa the document now in question was produced. We are not at the present stage concerned with the merits of the case, and it is sufficient to remark that the document, which embodies an order of appointment, is alleged to have been antedated to make it appear that the order originated while Mr. Gopalaswami Mudaliar was still President of the District Board.

(2.) The election petition was heard and decided by Mr. P. Rajagopalan, at the time the Subordinate Judge of Bellary, as Election Commissioner. Subsequently his Court was closed. The rules for the decision of disputes as to the validity of elections held under the Local Boards Act (hereinafter referred to as the Rules) provide that, if there be no Subordinate Judge, the District Judge shall be the Election Commissioner. Application was accordingly made to the District Judge, - whether as such or as successor to Mr. Rajagopalan in the office of Election Commissioner we will discuss presently - to prefer a complaint. The ground upon which the application was dismissed was that proceedings could only be instituted on the complaint of the Election Commissioner's Court , and that the new Commissioner does not exercise jurisdiction in continuation of his predecessor's jurisdiction . In other words, the learned District Judge found that he was without jurisdiction to make a complaint.

(3.) In considering the correctness of this finding the two questions we have to decide are, firstly, whether the District Judge, qua District Judge or qua Election Commissioner, is competent under Section 476, Criminal Procedure Code, to make a complaint and, secondly, whether an appeal lies to this Court under Section 476-B, from his order. The former question requires in the first instance a decision on the point whether an Election Commissioner can complain of an offence committed in or in relation to a proceeding in his Court ; because it necessarily follows that if he cannot complain neither can his successor (if he have one) nor the Court to which he is subordinate within the meaning of Section 195, Sub-section (3) Criminal Procedure Code (see Section 476-A). Thus we have to determine whether the Subordinate Judge, as Election Commissioner, could have made a complaint.